The Book of Prof Shad.docx

Article 82 there can be no discrimination on the

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Article 8(2): There can be no discrimination on the ground of religion against employees in the public sector; in the acquisition, holding or disposition of property; and in any trade, business or profession: Article 8(2). Limits on Article 149 powers: A preventive detention order cannot be issued on the ground that a convert out of Islam is involved in a programme for propagation of Christianity amongst Malays: Minister v Jamaluddin bin Othman. 40 This is because the Internal Security Act is derived from Article 149. Under Article 149 Parliament is authorised to violate Article 5 (personal liberty), Article 9 (freedom of movement), Article 10 (freedom of speech, assembly and association) and Article 13 (right to property). Freedom of religion in Article 11 is not subject to the special powers under Article 149. The Jamaluddin Othman decision is a stirring affirmation of the limits of Article 149 powers and the sanctity of religious freedom. 39 In relation to Muslims the power to punish deviants can be derived from Schedule 9 List II Item 1 – “creation and punishment of offences by persons professing the religion of Islam against precepts of that religion…” In the case of both Muslims and non- Muslims the Penal Code in sections 298, 298A (for federal territories only), 504, 505, 508 may be employed to punish words or behaviour that offend religious dogma. 40 [1989] 1 MLJ 368 54
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Limits on Article 150 powers : Even in times of emergency when Parliament’s powers are greatly enhanced, Article 150(6A) provides that freedom of religion cannot be restricted by an emergency law under Article 150. Belief in God: In an international perspective it must be noted that belief in God is not an essential aspect of all religions. Our thinking on this point must be global. Not all religions, among them Buddhism and Sikhism, are centred around God. The Constitution protects all religions whether theistic or not. Article 3(4): Though Islam is the religion of the federation, Article 3(4) states that nothing in Article 3 derogates from any other provision of this Constitution. This means that the right to religion guaranteed by Article 11(1) of the Constitution is not extinguished as a result of Article 3(1). RESTRICTIONS Like all freedoms, the right to follow one’s conscience cannot be absolute. It is subject to the following direct and indirect restraints: Article 3(1): Under Article 3(1) the practice of religion must not disturb peace and harmony. Articles 10: The restrictions on freedom of speech, assembly and association in Articles 10(2), (3) and (4) are also relevant because religious freedom is a bundle of many attributes. Article 11(4): Propagation of one’s religion to others is part of the constitutional right under Article 11. However this right is subject to one important limitation. Missionary activity amongst Muslims may be regulated. Under the authority of Article 11(4), State law may restrict the propagation of any religious doctrine among Muslims. Nine State Legislatures have passed such laws. 41 Article 11(4) is so broadly
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